The (In)visible Immigrant’s Privacy

Digital technology has significantly augmented U.S. immigration enforcement. For refugees and asylum seekers, navigating the immigration system involves traversing a complex data labyrinth. Their personal information is collected and used by both immigration authorities and private entities, often without transparency and accountability. This unchecked data collection fuels a surveillance state that disproportionately targets them, violating their agency, autonomy, and self-determination. They engage with immigration authorities at their most vulnerable, compromising their capacity for informed choice and consent. This results in the surrender of extraneous personal information while they remain the least protected by U.S. privacy laws. They become highly visible to immigration enforcement but effectively invisible to privacy laws. The (in)visible immigrant experiences three distinct but related forms of harm resulting from diminished privacy, which I categorize as (1) data surrender—the yielding of information prompted by the overwhelming need of the powerless to survive; (2) personality curation—the undue self-discipline, subordination, loss of self-esteem and erasure of personal identity and history prompted by the need to appear acceptable to authorities; and (3) weaponization of personal information— the harmful use of data obtained through coercion, vulnerability, or unequal power dynamics. This Article argues that privacy for refugees and asylum seekers should be protected as a fundamental human right in order to safeguard their agency, autonomy, and self-determination. While acknowledging public safety and national security, this Article advocates for recognition of the unique data privacy challenges refugees and asylum seekers face. At a minimum, they should be protected by the Fair Information Practice Principles (FIPPs), but they merit more.